A recent New York Times editorial justified the NLRB decision by arguing that unions are suffering from "the flight of companies to 'Right-to-Work' states where workers cannot be required to join a union."

A recent New York Times editorial justified the NLRB decision by arguing that unions are suffering from "the flight of companies to 'Right-to-Work' states where workers cannot be required to join a union."

By PATRICK J. REILLY It's not just Boeing that the National Labor Relations Board is picking on: For the second time this year, the NLRB has ruled against a Catholic college.

The Chicago office of the NLRB said that St. Xavier University had failed to demonstrate the "substantial religious character" necessary to qualify for exemption from federal labor law. As a result, adjunct professors in its employ will be allowed to organize, even though the school has argued that a faculty union would interfere with the school's autonomy as a religious institution by ceding "jurisdiction over important matters to a third party."

In January, the NLRB's New York office made the same determination about Manhattan College, a Christian Brothers institution, which has since appealed.

Both cases hinge on the Supreme Court's ruling in NLRB v. The Catholic Bishop of Chicago, et al. (1979), which found that the NLRB had violated the First Amendment's free exercise clause by requiring Catholic schools to comply with federal labor laws, thereby possibly interfering with religious decision-making. But that ruling didn't stop the NLRB from claiming authority over most Catholic colleges and universities by arguing that Catholic Bishop protects only "church-controlled" institutions that are "substantially religious," a phrase taken from Chief Justice Warren Burger's majority opinion in the case. Many of the nation's 224 Catholic colleges and universities are legally independent of the Catholic bishops or the religious orders that founded them.

So the NLRB has put itself in the position of judging schools' religious character, and it has concluded over the years that many Catholic institutions are inconsistent in their application of Catholic principles to teaching, course requirements, campus life and faculty hiring. It's a serious overreach by the government, though many Catholics would agree that colleges and universities often demonstrate inconsistent religious observation.

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Getty Images .The erosion of religious identity in Catholic higher education over the past 50 years has been marked by theological dissent, hostility toward the bishops, and increasingly liberal campus-life arrangements such as co-ed dorms and lax visitation rules. These issues fueled the 2009 confrontation at Notre Dame, for example, when pro-life Catholics objected to the school honoring President Barack Obama. This year the U.S. bishops are engaged in a review of Catholic educators' compliance with church rules for colleges and universities.

Colleges that have deliberately watered down their Catholic identity, in part to help themselves compete for government aid, now face church pressure to strengthen their religious identity. The choice for Catholic educators is increasingly clear: defend religious liberty and stand up for a strong Catholic identity—or give up the pretense.

Catholic educators are now awaiting the result of Manhattan College's appeal to the NLRB regulators in Washington. Their appeal relies heavily on an argument put forward in 1986 by future Supreme Court Justice Stephen Breyer. Writing for half the members of an evenly divided D.C. Circuit Court of Appeals, Judge Breyer argued that the NLRB had contravened the Catholic Bishop ruling by establishing a "substantial religious character" test to determine whether a college meets sectarian standards.

The D.C. Circuit has formally embraced Justice Breyer's reasoning twice over the past decade, instructing the NLRB to stop interfering with any college or university that "holds itself out to students, faculty and community as providing a religious educational environment." In ruling against St. Xavier University and Manhattan College, NLRB regional staff seem to have ignored that instruction.

Mr. Reilly, president of the Cardinal Newman Society, is author of "The NLRB's Assault on Religious Liberty," published by the society's Center for the Advancement of Catholic Higher Education.

California's Democratic Governor Jerry Brown has always been one to surprise. His latest is this week's veto of card-check legislation, which would have allowed agricultural workers to unionize if a simple majority sign an authorization card.

As we wrote last month ("Forgetting Cesar Chavez," May 14), the bill would have denied employers the ability to demand a secret ballot election if labor organizers wanted to unionize through card check. This would have made it easier for organizers to intimidate workers into joining a union since workers' selections would no longer be concealed.

The United Farm Workers union has been losing members for years as workers have chosen to decertify the union. For many workers the cost of their dues exceeds the benefits they gain through collective bargaining. Labor leaders hoped card check would shore up their dwindling rolls and give them more money to spend on elections. Mr. Brown's predecessor, Republican Arnold Schwarzenegger, vetoed earlier versions of the legislation, but union leaders figured they had an ally in the Democrat. It seems they misread history.

In 1975, during his first stint as Governor, Mr. Brown signed a law guaranteeing workers' right to a secret ballot. Labor leader Cesar Chavez fought hard for this right in the 1960s and '70s, and in his veto message Mr. Brown said card check would have altered "in a significant way the guiding assumptions" of state agricultural labor law.

It also could have killed thousands of jobs in the state's San Joaquin Valley, where unemployment exceeds 15%. Rigid union work rules and high labor costs have already driven many growers to Mexico.

Labor leaders and Democrats tried to pressure Mr. Brown into signing the bill by camping outside his office and chanting "Sí se puede." Their antics may have given the Governor some sympathy for the farm workers whose only protection against such hounding is the secret ballot.

Imprimis is the free monthly speech digest of Hillsdale College and is dedicated to educating citizens and promoting civil and religious liberty by covering cultural, economic, political and educational issues of enduring significance. The content of Imprimis is drawn from speeches delivered to Hillsdale College-hosted events, both on-campus and off-campus. First published in 1972, Imprimis is one of the most widely circulated opinion publications in the nation with over 1.9 million subscribers.

May/June 2011

Mark MixPresident,National Right to Work Legal Defense Foundation

The Right to Work: A Fundamental Freedom MARK MIX is president of the National Right to Work Legal Defense Foundation, as well as of the National Right to Work Committee, a 2.2 million member public policy organization. He holds a B.A. in finance from James Madison University and an associate’s degree in marketing from the State University of New York. His writings have appeared in such newspapers and magazines as the Wall Street Journal, the Washington Times, the Detroit Free Press, the San Antonio Express-News, the Orange County Register and National Review.

The following is adapted from a lecture delivered at Hillsdale College on January 31, 2011, during a conference co-sponsored by the Center for Constructive Alternatives and the Ludwig von Mises Lecture Series.

BOEING IS A GREAT AMERICAN COMPANY. Recently it has built a second production line—its other is in Washington State—in South Carolina for its 787 Dreamliner airplane, creating 1,000 jobs there so far. Who knows what factors led to its decision to do this? As with all such business decisions, there were many. But the National Labor Relations Board (NLRB)—a five-member agency created in 1935 by the Wagner Act (about which I will speak momentarily)—has taken exception to this decision, ultimately based on the fact that South Carolina is a right-to-work state. That is, South Carolina, like 21 other states today, protects a worker’s right not only to join a union, but also to make the choice not to join or financially support a union. Washington State does not. The general counsel of the NLRB, on behalf of the International Association of Machinists union, has issued a complaint against Boeing, which, if successful, would require it to move its South Carolina operation back to Washington State. This would represent an unprecedented act of intervention by the federal government that appears, on its face, un-American. But it is an act long in the making, and boils down to a fundamental misunderstanding of freedom.

Where does this story begin?

The Wagner Act and Taft-Hartley

In 1935, Congress passed and President Franklin Roosevelt signed into law the National Labor Relations Act (NLRA), commonly referred to as the Wagner Act after its Senate sponsor, New York Democrat Robert Wagner. Section 7 of the Wagner Act states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Union officials such as William Green, president of the American Federation of Labor (AFL), and John L. Lewis, principal founder of the Congress of Industrial Organizations (CIO), hailed this legislation at the time as the “Magna Carta of Labor.” But in fact it was far from a charter of liberty for working Americans.

Section 8(3) of the Wagner Act allowed for “agreements” between employers and officers of a union requiring union membership “as a condition of employment” if the union was certified or recognized as the employees’ “exclusive” bargaining agent on matters of pay, benefits, and work rules. On its face, this violates the clear principle that the freedom to associate necessarily includes the freedom not to associate. In other words, the Wagner Act didn’t protect the freedom of workers because it didn’t allow for them to decide against union membership. To be sure, the Wagner Act left states the prerogative to protect employees from compulsory union membership. But federal law was decidedly one-sided: Firing or refusing to hire a worker because he or she had joined a union was a federal crime, whereas firing or refusing to hire a worker for not joining a union with “exclusive” bargaining privileges was federally protected. The National Labor Relations Board was created by the Wagner Act to enforce these policies.

During World War II, FDR’s War Labor Board aggressively promoted compulsory union membership. By the end of the war, the vast majority of unionized workers in America were covered by contracts requiring them to belong to a union in order to keep their jobs. But Americans were coming to see compulsory union membership—euphemistically referred to as “union security”—as a violation of the freedom of association. Furthermore, the nonchalance with which union bosses like John L. Lewis paralyzed the economy by calling employees out on strike in 1946 hardened public support for the right to work as opposed to compulsory unionism. As Gilbert J. Gall, a staunch proponent of the latter, acknowledged in a monograph chronicling legislative battles over this issue from the 1940s on, “the huge post-war strike wave and other problems of reconversion gave an added impetus to right-to-work proposals.”

When dozens of senators and congressmen who backed compulsory unionism were ousted in the 1946 election, the new Republican leaders of Congress had a clear opportunity to curb the legal power of union bosses to force workers to join unions. Instead, they opted for a compromise that they thought would have enough congressional support to override a presidential veto by President Truman. Thus Section 7 of the revised National Labor Relations Act of 1947—commonly referred to as the Taft-Hartley Act—only appears at first to represent an improvement over Section 7 of the Wagner Act. It begins:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any and all such activities. . . .

Had this sentence ended there, forced union membership would have been prohibited, and at the same time voluntary union membership would have remained protected. Unfortunately, the sentence continued:

...except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.

This qualification, placing federal policy firmly on the side of compulsory union membership, left workers little better off than they were under the Wagner Act. Elsewhere, Taft-Hartley did, for the most part, prohibit “closed shop” arrangements that forced workers to join a union before being hired. But they could still be forced to join, on threat of being fired, within a few weeks after starting on the job.

Boeing’s Interest, and Ours

It cannot be overemphasized that compulsory unionism violates the first principle of the original labor union movement in America. Samuel Gompers, founder and first president of the AFL, wrote that the labor movement was “based upon the recognition of the sovereignty of the worker.” Officers of the AFL, he explained in the American Federationist, can “suggest” or “recommend,” but they “cannot command one man in America to do anything.” He continued: “Under no circumstances can they say, ‘you must do so and so, or, ‘you must desist from doing so and so.’” In a series of Federationist editorials published during World War I, Gompers opposed various government mandate measures being considered in the capitals of industrial states like Massachusetts and New York that would have mandated certain provisions for manual laborers and other select groups of workers:

The workers of America adhere to voluntary institutions in preference to compulsory systems which are held to be not only impractical but a menace to their rights, welfare and their liberty.

This argument applies as much to compulsory unionism—or “union security”—as to the opposite idea that unions should be prohibited. And in a December 1918 address before the Council on Foreign Relations, Gompers made this point explicitly:

There may be here and there a worker who for certain reasons unexplainable to us does not join a union of labor. This is his right no matter how morally wrong he may be. It is his legal right and no one can dare question his exercise of that legal right.

Compare Gompers’s traditional American view of freedom to the contemptuous view toward workers of labor leaders today. Here is United Food and Commercial Workers union strategist Joe Crump advising union organizers in a 1991 trade journal article: “Employees are complex and unpredictable. Employers are simple and predictable. Organize employers, not employees.” And in 2005, Mike Fishman, head of the Service Employees International Union, was even more blunt. When it comes to union organizing campaigns, he told the Wall Street Journal, “We don’t do elections.”

Under a decades-old political compromise, federal labor policies promoting compulsory unionism persist side by side with the ability of states to curb such compulsion with right-to-work laws. So far, as I said, 22 states have done so. And when we compare and contrast the economic performance in these 22 states against the others, we find interesting things. For example, from 1999 to 2009 (the last such year for which data are available), the aggregate real all-industry GDP of the 22 right-to-work states grew by 24.2 percent, nearly 40 percent more than the gain registered by the other 28 states as a group.

Even more dramatic is the contrast if we look at personal income growth. From 2000 to 2010, real personal incomes grew by an average of 24.3 percent in the 22 right-to-work states, more than double the rate for the other 28 as a group. But the strongest indicator is the migration of young adults. In 2009, there were 20 percent more 25- to 34-year-olds in right-to-work states than in 1999. In the compulsory union states, the increase was only 3.3 percent—barely one-sixth as much.

In this context, the decision by Boeing to open a plant in South Carolina may be not only in its own best interest, but in ours as well. So in whose interest is the National Labor Relations Board acting? And more importantly, with a view to what understanding of freedom?

Public Sector Unionism

As more and more workers and businesses have obtained refuge from compulsory unionism in right-to-work states in recent decades, the rationality of the free market has been showing itself. But the public sector is another and a grimmer story.

The National Labor Relations Act affects only private-sector workers. Since the 1960s, however, 21 states have enacted laws authorizing the collection of forced union dues from at least some state and local public employees. More than a dozen additional states have granted union officials the monopoly power to speak for all government workers whether they consent to this or not. Thus today, government workers are more than five times as likely to be unionized as private sector workers. This represents a great danger for taxpayers and consumers of government services. For as Victor Gotbaum, head of the Manhattan-based District 37 of the American Federation of State, County and Municipal Employees union, said 36 years ago: “We have the ability, in a sense, to elect our own boss.”

IN A neighbourhood of double garages and tightly cropped lawns, a woman stops her car in the middle of the road and leaps out to tell Randy Hopper, her state senator, how strongly she supports the reforms he and other Republicans legislators have championed in Wisconsin. There were not enough such voters to save Mr Hopper, who was turfed out of office in the middle of his term in a recall election this week. But there were enough of them to deny Democrats the majority they were seeking in the state Senate, and to dampen hopes on the left that aggrieved public-sector workers could restore their electoral fortunes nationwide next year.

In February the Republicans who control the state legislature had tried to push through a “budget repair” bill which aimed to reduce spending in part by severely restricting collective bargaining for the public sector. Government employees were to be stripped of any say in their benefits, while their pay, in future, would rise no faster than the consumer price index. The Democratic minority in the Senate, lacking the votes to block the bill, instead fled the state, depriving the chamber of a quorum. It was only after the Republicans worked out a parliamentary manoeuvre to get around the quorum requirement and pass the collective-bargaining reforms, three weeks later, that they returned, vowing to use every means at their disposal to avenge the Republican assault on labour.

One of those tools is recall elections, which Wisconsin allows for any public official, provided that they are at least a year into their current term and enough voters sign a petition. The main object of the Democrats’ ire, Governor Scott Walker, had been elected barely three months prior to the beginning of the row, as had all of the state representatives and half of the state senators; they cannot yet be recalled. So the Democrats focused instead on recalling the eight Republican senators over a year into their terms who had voted for the reforms. The Republicans, not to be outdone, decided to try to recall eight Democratic senators who had absconded.

The Democrats only managed to drum up enough signatures to force six of the Republicans to face the voters again, on August 9th. Had they won three of those races, they would have gained control of the Senate, which would have allowed them to stymie any new Republican initiatives they disliked. In the end, however, they won only two. Moreover, two Democrats face recalls of their own next week, which could conceivably take the two parties back to square one.

The Democrats argue that it was a victory simply to get sufficient numbers of voters worked up enough to force the recall elections in the first place. The Republican senators whom they took on were last elected in 2008, a good year for Democrats, so were always going to be hard to dislodge. There clearly has been a small swing in the Democrats’ favour since 2008, and a bigger one relative to their dire showing in 2010. But their failure to win a more sweeping victory nevertheless puts paid to their claim that a clear majority of ordinary Wisconsinites find the governor’s agenda too extreme.

What all this means for the rest of the country is unclear, to say the least. The dispute has definitely riled many in Wisconsin: turnout was much higher than in most special elections. But it was still lower than in a typical presidential year. That makes it hard to infer anything much about next year’s elections, when voters are likely to be more numerous but perhaps less inflamed. One thing seems certain, however: the Democratic fantasy of an irresistible leftward swing among voters outraged by Republican extremism is just that.

Public unions holding taxpayers hostage again. Commuters travelling between NJ and NY should pay $15 now? to pay for their benefits and pensions. Folks this has to go. The country is broke and I resent it. Why doesn't Buffet set up a multibillion $ fund for these public union people. He is such a good Demorat (I mean "crat"):

****Toll Increase JERSEY CITY, NJ (CBSNewYork) - Commuters accustomed to forking it over at various Hudson River crossings are telling the Port Authority Of New York and New Jersey what they think of proposed toll and fare increases.

The Port Authority is holding nine public hearings Tuesday on the proposed increases, which will affect bridges, tunnels and PATH trains.

1010 WINS’ Steve Sandberg reports: Both Sides Sound Off In Jersey City

Union laborers donned in bright orange shirts came by the busloads to voice their support of the hikes in Jersey City while some commuters spoke out in opposition.

“We cannot afford not to make these investments because we need the jobs,” one worker said.

Those speaking out against the proposal say the unions are being used as pawns to exploit other working people who can’t afford the increase.

“This is outrageous and greedy,” one woman said.

One Jersey City man even called the public hearings a sham.

“They’re being held in a place that nobody can find, they’re being held at a time that nobody can come,” he said.

EZ-Pass peak tolls would increase from $8 to $12 this year, and to $14 in 2014 EZ-Pass off-peak tolls would increase from $6 to $10 this year, and to $12 in 2014. Cash tolls would increase from $8 to $15 this year, and to $17 in 2014. Governors Andrew Cuomo and Chris Christie are both opposed to the proposal. Cuomo called it “A non-starter for obvious reasons,” while Christie said simply “You’re kidding, right?”

WCBS 880′s Peter Haskell: Compelling Arguments On Both Sides

Some motorists are disgusted by the toll hike.

“Unemployment is up and they’re continuing to raise everything,” David Lechese said. “What do we do to survive everyday? Gasoline prices, tolls, public transportation, food costs, energy costs — everything is going up.”

The Verizon strike is one thing since it is a private company the public unions have got to go and stop holding taxpayers hostage.This is crazy:

My friedn "F" sent me the following:==========================Recall that Boeing decided to built a 787 production plant in South Carolina because of a history of union strikes in Seattle. No Seattle jobs would be lost, but new jobs would be created in South Carolina. Boeing built the plant for $750 million, then the National Labor Relations Board (NLRB) sued Boeing saying it had engaged in unfair labor practices in building the plant, and ruled the plant could not open.

The NLRB Chairman is an Obama appointee, former union guy.

Now the legal paste is hitting the mixmaster with Freedom of Information requests to NLRB concerning its decision and communications leading up to the ruling. The NLRB is ignoring them, in violation of Federal Law.

Have a read through to see how it is unfolding. It is most amazing in this day and age. This is how Obama is creating jobs. F=======================

NLRB Sued For Documents Concerning Boeing Lawsuit

Judicial Watch Seeks Documents Pertaining To Decision To Sue Boeing, Shut Down Dreamliner Aircraft Production in SCFreedom of Information Act (FOIA) lawsuit has been filed by Judicial Watch against the National Labor Relations Board (NLRB). The suit seeks records concerning the NLRB's decision to file a lawsuit against Seattle-based Boeing for opening a $750 million non-union assembly plant in North Charleston, South Carolina to manufacture its Dreamliner plane (JW v National Labor Relations Board (No. 01470)).

With its July 14, 2011, FOIA request and related lawsuit Judicial Watch seeks records of internal communications between officials, officers, and employees of the NLRB related to Boeing and the agency's decision to file a lawsuit. Judicial Watch also seeks records of communication between the NLRB and the Obama White House, the Internal Association of Machinists and Aerospace Workers, the AFL-CIO, the Service Employees International Union (SEIU) and any other third party trade union, among others. Judicial Watch also seeks any NLRB records related to the impact of the new Boeing plant on employment in South Carolina. The timeframe for these requests is January 20, 2009, to July 14, 2011.

By letter of July 28, 2011, the NLRB acknowledged that the agency received Judicial Watch's complaint on July 14, 2011. However, the NLRB has failed to respond within the statutory allotted twenty business days. To date, the NLRB has failed to produce any documents or indicate when responsive documents will be released.

The NLRB filed a lawsuit in April 2011, against Boeing, claiming that the company's decision to open a Dreamliner production line in South Carolina was in retaliation against The International Association of Machinists and Aerospace Workers for a series of union strikes that reportedly slowed production of the plane in 2008 in Washington State. According to Boeing's spokesman, the NLRB's "claim is legally frivolous and represents a radical departure from both NLRB and Supreme Court precedent. Boeing has every right under both federal law and its collective bargaining agreement to build additional U.S. Production capacity outside of the Puget Sound region."

In addition to refusing to respond to Judicial Watch's FOIA request, the NLRB has also reportedly failed to respond to a subpoena issued by the House Oversight and Government Reform Committee seeking information related to the lawsuit. "This refusal by NLRB to abide by the law further heightens concerns that this is a rogue agency acting improperly," Committee chairman Rep. Darrell Issa said. "The integrity of NLRB and its leadership is clearly in question."

Last year, President Obama bypassed the U.S. Senate and recess-appointed Craig Becker to head the NLRB's five-member board. The Becker appointment was made after the U.S. Senate refused to move forward on his confirmation. An ally of ACORN, Becker had previously worked for the SEIU and the AFL-CIO, major financial backers of Obama and the Democratic Party. Controversially, Becker has refused to recuse himself from certain NLRB decisions affecting his former union clients.

"The American people have a right to know the facts surrounding the extraordinary decision by the NLRB to sue Boeing in order to effectively shut down an entire factory in South Carolina. There are serious questions about the NLRB's apparent abuse of power. There is simply no good reason for the NLRB to keep these records secret – unless it has something to hide. Yet again we see that President Obama, through his appointees, is contemptuous of an open and accountable federal government," stated Judicial Watch President Tom Fitton.

Everyone on this forum seems to enjoy union bashing, but one of the strongest unions I see are the police unions. Even in WI, public employee unions had to takea cut, but the police an firemen's union (since it supported the governor's election) was exempt from these cuts.

In Fullerton, a community near LA, police actions would have gotten any private employee fired a long time ago.

Yet, "Since the Thomas incident, six officers allegedly involved have been placed on involuntary paid administrative leave. City officials have not released their names.Police Chief Michael Sellers has taken a paid medical leave."

You gotta love it; six officers take paid leave and suddenly the Police Chief takes a paid medical leave; leave with full pay to stay home and hide from the problem....

Gee, if you really mess up on your job this bad, cost your employer $100,000's of dollars, where else do they put you on PAID leave, i.e. you get full pay and benefits to stay home and watch cartoons or play golf all day, while they check into it. Just fire the guys or at minimum, give them leave WITHOUT pay while the matter is investigated. No work, no pay. That's what any private employer would do. And probably most unions too. Why are police or firemen exempt?

"You gotta love it; six officers take paid leave and suddenly the Police Chief takes a paid medical leave; leave with full pay to stay home and hide from the problem....

Gee, if you really mess up on your job this bad, cost your employer $100,000's of dollars, where else do they put you on PAID leave, i.e. you get full pay and benefits to stay home and watch cartoons or play golf all day, while they check into it. Just fire the guys or at minimum, give them leave WITHOUT pay while the matter is investigated. No work, no pay. That's what any private employer would do. And probably most unions too. Why are police or firemen exempt?"

Did you or did you not say they "messed up" on their jobs? Do you happen to know the actual health status of the Chief?

"Did you or did you not say they "messed up" on their jobs? Do you happen to know the actual health status of the Chief?"

Ahhh DUH.... Otherwise the the ACTING Police Chief would not be doing an investigation, the FBI wouldn't be involved. I doubt if they were put on PAID administrative leave for no reason. Surely if they did nothing wrong they wouldn't be sent home to watch cartoons on full pay?

As for the Chief, who suddenly became ill when this problem blew up, I heard he has an acute case of not having any balls, a bad case of diarrhea caused by doing the wrong thing, and probably an acute allergy to lawyers, City Council Members, FBI, and Journalists.

Anything else and the Police Chief himself would be happy to make it known.

Law enforcement officers get paid to run towards things cowards like you run from. Sometimes, they have to use force in doing that job. They are empowered to use force, including deadly force in accordance with the constitutional and statutory limitations. If there is serious bodily injury, or a death, or even any claim of excessive force, there most assurredly will be an investigation on various levels. All it takes for the FBI to initiate an investigation is a claim of civil rights violations under the color of law. Those investigations can stretch on for months, even years potentially. Even the most perfect use of force caught on a dozen different cameras and with a million witnesses claiming it was legit requires investigation. You want to totally disincentive anyone from doing law enforcement? We know you won't be filling the gap.

When you run out of logic, you resort to name calling. Save the BS....

"run towards things"? Just like the Chief who ran towards home to watch cartoons and avoid responsibility?

This isn't just a profunctory "investigation". The City is going to pay big money because of their mistakes. Are you saying these Officers should stay home and watch cartoons "for months, even years potentially" while this runs it's course At full pay? On the taxpayer's dollar.

I'm not saying they are guilty or not of any criminal wrongdoing. I am speculating/predicting the the City will end up paying out the big bucks becauseof their incompetence. And I am also saying IF these policemen didn't have a very strong union (a subject in general you seem to bash) they would all be fired or at least put on leave without pay pending the investigation. Instead of FULL PAY to stay home and watch cartoons.

"Ok stupid" I'd say you were a pseudo intellectual, but you'd get confused and think I was saying you were smart and half Japanese as well.

Just like the Chief who ran towards home to watch cartoons and avoid responsibility? Again, you have no idea what the actual health condition the chief might or might not have.

This isn't just a profunctory "investigation". Ok, what is a "profunctory investigation"? Please define that for me.

The City is going to pay big money because of their mistakes. Again, you asserting without evidence that mistakes were made. Were you there? Do you have any firsthand knowledge that mistakes were made?

I am speculating/predicting the the City will end up paying out the big bucks becauseof their incompetence. Agencies settle because it's less expensive than litigation, not because the case has merit. Their legal/risk management teams do a cost/benefit analysis which dictates if they litigate or settle.

And I am also saying IF these policemen didn't have a very strong union (a subject in general you seem to bash) they would all be fired or at least put on leave without pay pending the investigation. Instead of FULL PAY to stay home and watch cartoons. Even in states like mine where very few agencies have unions with any legal standing to represent officers, there is due process related to claims of misconduct, even where it concerns sheriff's deputies who serve "at the pleasure" of the elected Sheriff. Your sneers about watching cartoons is duly noted.

Ed Nowicki, who is one of the leading experts in police use of force was called in to be part of the federal prosecution team after the LAPD officers were cleared on state charges (No double jeopardy protections for cops). When he had a chance to see ALL of the Rodney King video, not just the specially edited clips shown endlessly in the media, he changed his mind about the guilt of the accused officers. He now calls the Rodney King case "Media Brutality".

According to the District Attorney's Office ONLY the sentence was a miscarriage of Justice; according to the DA, they should have been sentenced even longer than their 30 months for their criminal actions!!!

This morning as I readied for my daily grind, I had the television in my bedroom tuned to the NBC’s “Today Show.” (Not my choice, I was overridden.) There on the screen was the ineffable Matt Lauer grilling Sheriff Lee Baca from Los Angeles about his deputies shooting at a suspect’s vehicle several times. Mr. Lauer, no doubt a use of force expert in his own right due to the fact that, um …… well I don’t quite know why his is an expert but he seems to think he is. Whether he is or not is debatable but he does have the power to make your use of force decisions into racially motivated criminal acts simply by his voice inflections, mannerisms and ambush style interviewing and as you know from my previous columns what I call “Media Brutality!”

Anyone in an officer’s shoes might ask, "Has Mr. Lauer ever walked down a dark alley in search of someone he knew would harm him if confronted? Has he ever run a foot chase, or chased a car at high speeds? Have his children or wife ever been scorned, ridiculed or even threatened? Have his wife and children ever looked at him with those eyes?" You know the kind of eyes I am talking about, the kind that say please come home safe? Well then I think that a use of force expert he is not.The halo effect of 9/11 is gone; it lasted six months, maybe a year. It is okay to beat up on the cops again; in fact it is in vogue again. In every newsroom across the country, in the boardrooms of the Hollywood studios (and on every T.V. channel with some obvious exceptions) the rule of thumb seem to be, depict the cops any way you can that will turn a buck, win the sweeps, garner an Emmy, or Oscar, or win the Pulitzer.

Recently a new phenomenon has crept into the American lexicon called the “CSI Effect.” I have not quite figured out just why evidence technicians are now lead detectives, chase suspects, interrogate suspects and have become individuals who possess in their own minds the combined knowledge of every science known to mortal man, but then again you probably are puzzled too. Just think of the kind of money they can make in the private sector as defense witnesses when they retire.As funny as the CSI Effect might be to professional law enforcement people, it should also be viewed as deadly serious. Why? Simply because your future might someday hinge on what a jury believes. No matter how many CSI Miami’s, Las Vegas’s, New York’s, Chicago’s, Dallas’s or Podunk’s there are or will be, and no matter where you are or where you go in law enforcement, we will always have “Dragnet” and “Just the Facts Ma’am!” that is the creed we all swear by.Swearing or affirming “to tell the truth, the whole truth, and nothing but the truth, so help you _ _ _ ( Just trying to maintain the political correctness of my column, you fill in the blanks) is a chore in itself because the dominant media has never let the truth, sworn to or otherwise, get in the way of a good story. That is why it is critical that you understand what AfterForce is, how it affects the facts, how it affects you, your family, your department and even your communities.Headlines that read like “LOS ANGELES (AP) - California officials promise a thorough investigation of yesterday's chase that ended in a barrage of police fire in Compton.” are what AfterForce is all about. Most law enforcement use of force instructors and training programs teach the how to, the when to, and the why to applications of the use of force. For years an axiom in the use of force was, “Ask yourself are my actions court defensible?” When it comes to AfterForce maybe a better question to ask is; “will my actions be media defensible?”

Many law enforcement officers and administrators may disagree with that statement, but there is not enough emphasis placed on the psychological effects of media brutality on officers, their families, their departments and their communities. The law enforcement officer must have his or her own CSI Effect, what I call the Critical Statement Index. Post shooting, post use of force applications statements from law enforcement executives, prosecutors, mayors and the officers themselves, weigh heavily upon how that use of force application will be viewed by the general public. What you say, how you photograph, and your mannerisms will all affect how you are heard.Rick Rosenthal, noted media expert and law enforcement trainer, in his media training for law enforcement makes the statement, “You must feed the animals”, meaning you must give the media information. Although the problem is, do you give them a snack, a big lunch, or a seven course gourmet meal? This is where I think law enforcement loses sight of reality, especially in high media profile cases.The focus is always on legalities, criminal and civil, and we always seem to lose sight of the health, safety, and well being of the officers involved, they become the bad guys and the focus in never on the suspect, and his decisions to violate the law. Ask yourselves when is the last time that you heard a press conference where a law enforcement spokesperson shifted the focus back to the causative factors of the application of the use of force?

When is an individual responsible for his or her own choices and decisions? Apparently never, except if you are a law enforcement officer! It is this writer’s humble opinion that this tactic is rarely if ever used, because we have always lived by another axiom, which is “Never argue with a man that buys his ink by the barrel!” Meaning of course a newspaper, although that meaning has now extended to all electronic media that reach the masses on a daily basis.They saw it on TV, or read about it in the newspaper or read it on-line so it must be true. This is the CSI Effect and it is affecting the outcome of trials and the careers of all law enforcement officers, because the jury pool is polluted with prejudicial statements and the political views of celebrities, who can get their face and their views on almost any media outlet, for any cause they might come up with. Remember the Amadou Diallo shooting in New York City? Even the Pro-Cop daily newspaper the New York Post could not resist the banner headline “IN COLD BLOOD” as the photo above illustrates. Then after all was said and done and all four officers were exonerated the dominant media continued to fan the flames.The much acclaimed PBS Network News Hour with Jim Lehrer ran a story about a year after the acquittal on what has happened in New York City since the acquittal of four police officers in the shooting death of immigrant Amadou Diallo. (http://www.pbs.org/newshour/bb/law/jan-june00/diallo_3-3.html). In their coverage they tout a New York Times /CBS News poll which has 30% of the people polled agreeing with the Diallo verdict, 50% disagreeing and 20% undecided. Your CSI Effect should be focused on those 20% undecideds. The article attempts to be balanced but in the end is an indictment of law enforcement in general, even with the efforts of Patrick Lynch, the NYPD PBA President who is interviewed for the piece.

According to the District Attorney's Office ONLY the sentence was a miscarriage of Justice; according to the DA, they should have been sentenced even longer than their 30 months for their criminal actions!!!

GM has already made his case, so i need not restate it. OTOH it is not unknown for police to lie and cover up for their own. Truly it is a difficult area, one whose unique variables IMHO vitiate JDN's efforts at purporting cognitive dissonance within the general anti-union animus and pro-LEO animus of most of us.

The DA's office that lost the case?Ahhh no, the one where the Justice Department won.

In August 1993, Judge Davies sentenced Koon and Powell to thirty months. The prosecution appealed, arguing that the sentences were too light and violated federal sentencing guidelines. In 1995, the Ninth Circuit Court of Appeals agreed with the government's position and sent the case back to Judge Davies for the imposition of a tougher sentence. Koon and Powell appealed to the United States Supreme Court. On June 13, 1996, the High Court reversed the Ninth Circuit and upheld the sentence of Judge Davies on all but two minor points. The original thirty-month sentence stood.

Anotherwards, for their terrible crimes, Koon and Powell got off light according to the Prosecutors. And my tax dollars paid and paid and paid for Koon and Powell.

In the meantime, in Rodney King's civil suit against the City of Los Angeles, the Los Angeles Police Department, Stacey Koon, Laurence Powell and others, given the evidence was overwhelming, the City of Los Angeles conceded liability, and went to trial solely on damages. The jury awarded Rodney King $3.8 million in actual damages to compensate King for loss of work, medical costs, and pain and suffering. The judge awarded King's lawyers $1.6 million in fees.

So because of Koon and Powell's incompetence, the City had to pay 5 million dollars. My tax dollars. The City probably paid millions for their criminal defense. My tax dollars. But interesting enough, in the Civil trial, "The court found that the criminal verdicts were sufficient to show that Koon and Powell were acting with “actual malice” and not entitled to reimbursement.

And probably, the City paid Koon's and Powell's full salary while they stayed home watching cartoons until they were criminally convicted. Years of full salary to a criminal....

What private employer is going to do that?

That's Unions for you. You seem to hate them, except when you need them. Police love their Union. Whether it's fake uniform payments, early retirement, absurd sick leave plans, overly generousdisability benefits, etc. the average private employer would never offer. But the Police Union takes care of the Police.

According to the District Attorney's Office ONLY the sentence was a miscarriage of Justice; according to the DA, they should have been sentenced even longer than their 30 months for their criminal actions!!!

The US Dept. of Justice isn't called a "District Attorney's Office". As usual, you know nothing about which you speak.

Amazing how someone who is so dependent on law enforcement for protection is so willing to trash those very same officers. And then you vote for politicians that undercut the rule of law and cultivate and reward criminal behavior, then you don't understand why there is such a crime problem. Kind of like how you support economy-killing policies and politicians and then you can't understand why California has the 2nd. highest unemployment rate.

Throughout history, poverty is the normal condition of man. Advances which permit this norm to be exceeded — here and there, now and then — are the work of an extremely small minority, frequently despised, often condemned, and almost always opposed by all right-thinking people. Whenever this tiny minority is kept from creating, or (as sometimes happens) is driven out of a society, the people then slip back into abject poverty.

Let's forget the name, it doesn't change the facts. If you prefer, let's just say Justice Department's Prosecutors said Officer's Koon and Powell should have served a lot longer than 30 months. They were criminals. And they got off easy. And the public paid and paid, and paid for their mistakes. Millions upon millions of public tax dollars paid because of their criminal behavior....

Due Process? Well the average employee sure doesn't get it, but OK, I"m all for giving them a quick informal pre suspension hearing then putting them on leave without pay.

"Absent extraordinary circumstances, a pre-suspension hearing must be provided when they intend to suspend without pay. Taking instruction from the Court discussing Loudermill, the hearing need not be ‘elaborate’. Furthermore, where post deprivation grievance procedures are available, the employee is only entitled to notice of the charges against him, an explanation of the employer’s evidence, and, the opportunity for the employee to present his or her side of the story. Loudermill made clear that a pre-termination hearing is required – which the Third Circuit has now applied to suspensions without pay."

In contrast, the POLICE UNION contract (this is a Union Thread) kept them fully paid for years while they stayed home watching cartoons (our tax dollars at work) until their criminal conviction was final.

I bet THEY love their UNION. As does nearly every other police officer love their UNION......

And CA does have a high unemployment rate, but do you know how hard it is to fire a Police Officer? Versus private employment?Incompetent UNION police officers just stay home with full pay watching cartoons, or go out on Long Term Sick Leave with full pay. In contrast, private employees just get laid off with no pay.......Darwin at work, except for Police Unions?

So why don't you love Unions?

You are quick to criticize Unions, but silent on all the many benefits enjoyed by Police Unions.....

Again, due process rights related to employment may or may NOT be related to union membership.

Got it?

A law enforcement officer has due process rights, no matter if they are a union member or not.

Got it?

Got it! What I don't get (I'm sorry to have to keep repeating myself for you) is why after a quick informal pre suspension hearing (due process) they get to stayhome watching cartoons and receive full pay? For days, weeks, months, even years as you point out. That's ALL because of their UNION.

In contrast, a private employee would be tossed on his butt with no pay. You seem to think that's ok, but .... Don't you see the hypocrisy?

YOU gotta love Police Unions!

So why not share the good deal with others who want to be in a Union too?

The rights of government workers are primarily focused on their employment protection and hiring status. These rights start the day the employee is hired and expand further as the employee transitions from a probationary to a permanent employee. These rights cover examination and competition candidacy, evaluation, discipline and due process, and retirement. Most of these categories are incorporated within the concept of civil service.

Civil Service Defined

The concept of civil service, whether at the federal or local level, is generally the same: government operations need to function at medium and lower levels in an apolitical manner. While top leadership is accepted to be political appointments, the daily program levels and staff should be free of political conflicts. The way to ensure this is to use an employment system that requires more than just an at-will employment environment. Civil service thus incorporates a set of employment rules that require employees be protected from undue political pressure. The rules govern recruitment, selection, hiring, progressive discipline and ultimately the termination process.

Civil Service Involvement

Civil service rights for an employee begin at recruitment rather than hiring. The major right of civil service is permanency of employment for an employee. Once an employee passes the initial probationary period of performance (usually six months to a year in the job), they then earn permanent employment status. At such time, unlike at-will employment, the permanent employee cannot be terminated without sufficient and documented cause in most circumstances (legislative removal of program funding can be an exception, for example). In practice, discipline proceedings to termination usually take 6 months to a year to put into effect (except for extreme cases such as gross theft, felony arrest or violence in the workplace).

Discipline and Due Process

The second major employee right is guaranteed due process.Discipline procedures for government employees are extensive. For example, Equal Employment Opportunity (EEO) rules permit employees to have a full hearing to assert violations of their civil rights protected under federal or state rules (i.e., no discrimination based on race, religion, physical limitations, etc.). Private sector employees do not necessarily have this forum and have to rely on private legal representation.

Employees' due process rights are frequently codified sets of rules with regards to how discipline has to be communicated and what the appeal processes are. An individual government manager cannot act arbitrarily with regards to discipline under the civil service system. Instead, multiple levels of review are required and the employee has a right to argue his case, including discussing evidentiary material and calling forth witnesses.

Retirement

Many government levels have existing retirement programs that authorize a vested right of benefit in government employees after a certain number of years of employment. Government agencies are only recently beginning to look at self-directed retirement programs such as 401Ks. Most are still under old, traditionally defined benefit models, better known as "pension" programs. Once vested, an employee continues to increase the amount of pension paid in retirement with years of active service and level of salary paid while employed. Earned time in and value cannot be eliminated under most systems and become the property of the employee (even so much as to be included in assets distributed during an employee's personal divorce proceeding).

Conclusion

Government employees do enjoy specific rights in their employment not otherwise available in private jobs, and this is mainly due to protecting the daily functions of government from too much political influence. They are also in place to make sure employees are treated fairly in all employment matters and that documentation always exists for punitive action taken.

No. It's not because of any UNION, it's from due process rights related to civil service.

Say it with me. Due process. Not union. Due process.

DuuuuuUUUUUUuuuuuuue Processsssssssssss.

It really hard to say because it's not true.

As I said, AFTER they get their due process, their quick "informal pre suspension hearing", it's legal to send them home WITHOUT PAY. It's the UNIONS that protect them and enable them to stay home with full pay watching cartoons for months on end in spite of damning evidence against them.And it's their Unions who will pay for legal representation at the hearing.

Isn't the 3rd Circuit in your area? Did you read Schmidt v. Creedon?

Absent extraordinary circumstances, a pre-suspension hearing must be provided when they intend to suspend without pay. Taking instruction from the Court discussing Loudermill, the hearing need not be ‘elaborate’. Furthermore, the employee is only entitled to notice of the charges against him, an explanation of the employer’s evidence, and, the opportunity for the employee to present his or her side of the story.

So give them a pre suspension hearing, then if appropriate suspend them without pay....

Federal and N.Y. appellate courts both reject a police officer's claim that he was suspended without adequate Due Process. Accused of having sex with a civilian while on duty, he received notice of the charges with dates and locations, references to applicable regulations, was able to respond to the allegations and had his lawyer present during the I-A interview. 2004.

Finally, as a side note, private employees have no such protection. They mess up, they get fired without any hearing, no pay..... Nothing...I bet if private employees asked for Police "due process" protection, most here on this site would be criticizing that as being way too liberal...

Moreover, Police Unions are one of the most powerful Unions around; benefit abuse is rampant. Yet somehow GM, while you and your family probably receive rich Police benefits, you still criticize Unions.

Yet you never criticize Police Unions?

Back to my question?

Hypocrisy?

I mean if, as you say, Unions are bad, aren't all Unions, including Police Unions, bad?

The history of modern law enforcement began 166 years ago with the formation of the London Metropolitan Police District in 1829. By creating a new police force, the British Parliament hoped to address the soaring crime rate in and around the nation's capital, attributed at the time to rapid urban growth, unchecked immigration, poverty, alcoholism, radical political groups, poor infrastructure, unsupervised juveniles, and lenient judges. The principles adopted by Sir Robert Peel, the first chief of the London Metropolitan Police, for his new "bobbies" have served as the traditional model for all British and American police forces ever since. These principles include the use of crime rates to determine the effectiveness of the police; the importance of a centrally located, publicly accessible police headquarters; and the value of proper recruitment, selection, and training.

However, perhaps the most enduring and influential innovation introduced was the establishment of regular patrol areas, known as "beats." Before 1829, the police--whether military or civilian--only responded after a crime had been reported. Patrols occurred on a sporadic basis, and any crime deterrence or apprehension of criminals in the act of committing crimes happened almost by accident.

Peel assigned his bobbies to specific geographic zones and held them responsible for preventing and suppressing crime within the boundaries of their zones. He based this strategy on his belief that the constables would:

* Become known to the public, and citizens with information about criminal activity would be more likely to tell a familiar figure than a stranger * Become familiar with people and places and thus better able to recognize suspicious persons or criminal activity, and * Be highly visible on their posts, tending to deter criminals from committing crimes in the immediate vicinity.

To implement fully the beat concept, Peel instituted his second most enduring innovation: The paramilitary command structure. While Peel believed overall civilian control to be essential, he also believed that only military discipline would ensure that constables actually walked their beats and enforced the law on London's mean streets, something their nonmilitary predecessors, the watchmen, had failed to do.EARLY AMERICAN POLICING

Meanwhile, across the Atlantic, American policing developed along lines roughly similar to those of the London police. Most major U.S. cities had established municipal police departments by the Civil War. Like the London police force, these departments adopted a paramilitary structure; officers wore distinctive blue uniforms and walked assigned beats. However, unlike the bobbies, American officers carried guns and were under the command of politically appointed local precinct captains. Lax discipline led to abundant graft.

While the British quickly embraced the bobbies as one of their most beloved national symbols, Americans held their police in much lower esteem. "Of all the institutions of city government in late-nineteenth- century America, none was as unanimously denounced as the urban police," wrote sociologist Egon Bittner. "According to every available account, they were, in every aspect of their existence, an unmixed, unmitigated, and unpardonable scandal."1

REFORM AND PROFESSIONALISM

By the turn of the century, the progressive movement began to promote professionalism in law enforcement as one of the basic components of rehabilitating municipal politics. Concern about corruption and brutality in local police forces resulted in State takeovers of some city departments and led to the creation of new State police organizations removed from the corrupting influences of local ward politics.

Reformers sought to insulate the police from political interference while retaining local government control. The International Association of Chiefs of Police (IACP), founded in 1893, immediately called for the adoption of a civil service personnel system and the centralization of authority in strong executive positions, which could control the politically aligned precinct captains

he Department of Commerce’s Statistical Abstract of the United States (1991) reports that 18 million persons are employed in 82,000 governmental organizations at the local, state, and federal levels.1 Meaningful, effective, procedural due-process protections for these employees create a feeling of fairness in the workplace; promote confidence and positive morale; breed an environment of collegiality, efficiency, and esprit de corps; and prevent demoralization of valuable employees as well as abusive management conduct. The result is that the public employer and the general public are also better served when procedural due-process protections are provided.2

The Fifth and Fourteenth Amendments of the U.S. Constitution both address the right of all citizens to due process. The Fifth Amendment has an explicit requirement that the federal government not deprive any individual of life, liberty, or property without the due process of law. The Fourteenth Amendment explicitly prohibits states from violating an individual’s rights of due process and equal protection.

Due-process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a liberty or property interest. Thus, the threshold question that must be answered before procedural due-process rights are triggered is whether a liberty or property interest is at risk.

Property Interest

A property interest in a job is created when an employee has a reasonable expectation of continued employment. Property interests are not created by the Constitution but rather by existing rules or understandings that stem from an independent source such as state law.3 The following can create this expectation:

• A collective-bargaining agreement that requires the employer to have just cause or an articulable reason to discipline an employee

• A government ordinance or charter that requires just cause for discipline

• An employer operations manual that requires just cause for discipline

• A civil-service rule that requires just cause for discipline

• A state or federal statute that requires just cause for discipline

• Any oral promises that could create a reasonable expectation of continued employment4

• The employer’s past practice and custom of requiring just cause even though not required by law, ordinance, operation manual, or oral statement5

Just Cause

The court in Baldwin v. Sisters of Providence defined just cause as “honest cause or reason, regulated by good faith on the part of the party exercising the power.”6 A discharge for just cause is one that is not for any arbitrary, capricious, or illegal reason and that is based on facts both supported by substantial evidence and reasonably believed by the employer to be true.

Just cause, justifiable cause, proper cause, obvious cause, and cause are often-used terms that all mean the same thing: they exclude discharge for mere whim or caprice.7

Liberty Interest

A liberty interest is created when the disciplinary action taken has the effect of making it likely that the employee will be unable to continue in the profession in the future.8 For example, a police officer terminated for an offense that would result in the revocation of the officer’s state certification would find it impossible to obtain another police officer position in a different department in that state because certification was revoked.

At-Will Employees

The employment-at-will doctrine, simply stated, says that either party may terminate at any time any employment relationship that is not in writing and is for an indefinite period of time, for any reason or no reason at all.9 Generally, police chiefs, fire chiefs, appointed sheriffs, part-time employees, probationary employees, and reserve officers are not afforded due process, as they are considered at-will employees. However, federal statutes (see the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act of 1988 as examples) and many states provide protections to employees from discriminatory practices. Of course, any termination of an at-will employee contrary to a state or federal statute is illegal. In addition, several states (California, Connecticut, Delaware, Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, New Hampshire, New York, Oklahoma, Oregon, Rhode Island, Texas, Washington, and Wisconsin, and possibly others) have statutes to protect employees from retaliation for reporting management wrongdoing, that is, whistleblowing.

Historical Determination of Just Cause

Courts have generally agreed that the issue of whether or not the reasons asserted for an adverse employment action constitute just cause is a question of fact that should be left for the jury to decide.10 Although a matter for the jury, employment lawyers, scholars, and arbitrators have been attempting to identify the standards for the determination of just cause over the past 30 years. In the appendix to a 1966 arbitration decision, arbitrator Carroll R. Daugherty first articulated the factors that have in employment literature since then been called the seven tests of just cause.11 Daugherty asked the following seven questions:

• Did the employer provide the employee forewarning or foreknowledge of the possible or probable consequences of the employee’s conduct?

• Was the employer’s rule or managerial order reasonably related to ◦the orderly, efficient, and safe operation of the employer’s business and ◦the performance that the company might properly expect of the employee?

• Did the employer, before administering discipline to the employee, make an effort to discover whether the employee did in fact violate a rule or order of the employer’s management?

• Was the employer’s investigation conducted fairly and objectively?

• At the investigation, did the judge obtain substantial evidence or proof that the employee was guilty as charged?

• Did the employer apply its rules, orders, and penalties evenhandedly and without discrimination to all employees?

• Was the degree of discipline administered by the employer in a particular case reasonably related to◦the seriousness of the employee’s proven offense and

◦the record of the employee in service with the employer?

Daugherty’s decision explained that an answer of no to any one or more of the seven questions normally signifies that just and proper cause did not exist.

The U.S. Supreme Court, in the 1987 case of United Paperworkers Union, AFL-CIO, et al. v. Misco, Inc., provided eight tests for the determination of just cause as follows:

• Was the employee’s position reasonable?

• Was notice given to the employee?

• What was the timing of the investigation?

• Was the fairness of the investigation considered?

• What was the evidence against the employee?

• Was there a possibility of discrimination?

• Was the nature of the offense considered?

• Was the employee’s past record considered?12

Contemporary Determination of Just Cause

In determining today whether an employee was properly discharged and whether the discharge was supported by the required just cause, the following criteria for just cause are likely to be considered:13

Have the charges against the officer been factually proven? Courts and arbitrators across the United States have utilized a variety of standards of proof in analyzing disciplinary decisions, varying from preponderance of the evidence in actions less than discharge to the higher standard of clear and convincing evidence in discharge cases, to proof beyond a reasonable doubt in cases that involve criminal allegations. However, the proof generally required, in cases involving the revocation of a professional license, is the standard of clear and convincing evidence.14 In cases involving the termination of a career service employee, the standard of preponderance of evidence is normally applied.15 In the termination of an employee not involving the loss of license or the protection of career service, the standard of proof required must be supported by competent, substantial evidence.16

Was the punishment imposed by the employer disproportionately severe under all circumstances? Although there is no universally accepted protocol for the determination of the appropriateness of punishment, the U.S. Merit Systems Protection Board (MSPB), in the case of Douglas v. Veterans Administration,17 provided the following factors for consideration in determining the appropriateness of punishment:

• The nature and seriousness of the offense and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was frequently repeated

• The employee’s job level and type of employment, including supervisory role, contacts with the public, and prominence of the position

• The employee’s past disciplinary record

• The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability

• The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect on the supervisor’s confidence in the employee’s ability to perform

• The consistency of the penalty with those imposed on other employees for the same or similar offenses

• The impact of the penalty on the agency’s reputation

• The notoriety of the offense or its impact on the agency’s reputation

• The clarity with which the employee was aware of any rules that were violated in committing the offense or had been warned about the conduct in question

• The potential for the employee’s rehabilitation

• The presence of mitigating circumstances surrounding the offense, such as unusual job tension, personality problems, mental impairment, harassment or bad faith, or malice or provocation on the part of others involved in the matter

• The adequacy and effectiveness of alternative sanctions to deter such conduct in the future

Did the employer conduct a thorough investigation into the incident? The investigation should, at the minimum, include examining all investigatory leads and interviewing all witnesses.18

Were other employees who engaged in conduct similar or identical to that of the officer treated as harshly by the employer? Commonly referred to as the disparate treatment defense, this question focuses on the employer’s preexisting pattern of discipline imposed in identical or similar cases.

Was the officer’s misconduct the product of action or inaction by the employer? Any claims that the employee was inadequately trained and therefore could not perform the assigned ask satisfactorily, or a supervisor ordered the employee to perform the act or contributed to the employee’s misconduct by not previously enforcing the rules, can affect a ruling of just cause.

Did the employer take into consideration the officer’s good or exemplary work history? Generally speaking, the longer the work history and the higher the work performance evaluations, the less the punishment.

Did the employer take into consideration mitigating circumstances? For example, was the employee suffering from a physical ailment at the time of the misconduct, or was the employee provoked into committing the misconduct?

Was the officer subjected to progressive or corrective discipline? The theory of progressive discipline is that punishment should occur in ever-increasing severity to modify behavior. Corrective discipline is based on the theory that an employee may not know how to perform the job tasks properly (perhaps due to inadequate training) and that punishment will not result in the ability to perform the tasks.

Was the employer motivated by antiunion bias?This defense is raised most frequently when the disciplined employee is an active member in a labor organization or is attempting to garner support for a labor organization or when there has been a poor working relationship between a labor organization and the employer.

Are the employer’s rules clear and understandable? A rule should not be open to more than one reasonable interpretation.In addition, all rules should be widely disseminated to ensure that all employees are aware of the behavior expected of them in the workplace. Rules that seem broad, such as those that forbid the use of excessive force or obscene language are enforceable if the employer can show that the rule is readily comprehensible to the average employee in the organization.19

Is the officer likely to engage in similar misconduct in the future? In cases of termination, arbitrators and judges will often consider whether the employee would be likely to repeat the offense or whether the conduct was an aberration from the employee’s normal conduct.20

Was the officer accorded procedural due process in the disciplinary investigation? Essentially, procedural due process requires that a meaningful opportunity to be heard must be afforded to public employees who have a property or liberty interest in their employment. What is the process that is due an employee? The courts generally apply a three-part balancing test.21 The factors balanced include the employee’s interest in retaining the job, the employer’s interest in the expeditious removal of an unsatisfactory employee and the avoidance of administrative burdens, and the risk of an erroneous decision.22

Conclusion

The Fifth and Fourteenth Amendments to the U.S. Constitution provide for due-process protection for employees accused of employment rule violations. Due-process procedures benefit not only employees but also employers and the public.

The requirement for due process is triggered through an expectation of continued employment (property interest) or when employees are unlikely to be able to continue in their profession because of the disciplinary action (liberty interest).

The determination of whether individuals are entitled to due process through a property interest in their jobs is generally made through the concept of just cause. Just cause means essentially that employees cannot be discharged from their jobs for mere whim or caprice. What constitutes just cause has been developed over the past 30 years from numerous arbitration and court decisions. Today, a set of established questions must be answered in the affirmative before a discharge can be classified as appropriate.¦

Moreover, Police Unions are one of the most powerful Unions around; benefit abuse is rampant. Yet somehow GM, while you and your family probably receive rich Police benefits, you still criticize Unions.

Yet you never criticize Police Unions?

Back to my question?

Hypocrisy?

I mean if, as you say, Unions are bad, aren't all Unions, including Police Unions, bad?

I can say from personal experience that the only thing I could count on Teamsters Law Enforcement League membership was the regular deduction of dues from my bank account. I was slugging it out with a corrupt police administration at the time, and they did nothing for me.

By JAMES TARANTO In his Labor Day speech in Detroit, Barack Obama issued a ringing endorsement of government employee unions:

Having a voice on the job and a chance to organize and a chance to negotiate for a fair day's pay after a hard day's work, that is the right of every man and woman in America--not just the CEO in the corner office, but also the janitor who cleans that office after the CEO goes home. Everybody has got the same right.And that's true for public employees as well. Look, the recession had a terrible effect on state and local budgets--we all understand that. Unions have recognized that; they've already made tough concessions.From the president's hometown comes an example of what he is actually supporting. The Chicago Tribune reports that an investigation it conducted with WGN-TV found "23 retired union officials from Chicago stand to collect about $56 million from two ailing city pension funds."

That's an average of $2.4 million each, and some will rake in even more. Dennis Gannon, a former president of the Chicago Federation of Labor, stands to collect some $5 million. In line for $4 million apiece are Liberato "Al" Naimoli, president of the Cement Workers Union Local 76, and James McNally, vice president of the International Union of Operating Engineers Local 150.

"Since the 1950s," the Trib explains, "city workers who take leaves of absence to work full time for unions have been able to remain in city pension funds if they choose. The time they spend at their union jobs counts toward their city pensions."

Ill. Attorney General Office

Dennis Gannon, pensioner.Union jobs, however, are far more lucrative than city jobs. Gannon's city salary was $56,000 a year; his union salary, $200,000. But he retired from his city job in 2004--at age 50, and 13 years after beginning a leave of absence. Between then and 2010, when he retired from the union, he collected both the $200,000 union salary and a $150,000 city pension.

How did the city end up paying him a pension nearly three times his salary? That's where things get interesting. Few labor leaders took city pensions, the Tribune reports, "until the law was changed in 1991 to base those workers' city pensions on their union salaries instead of their old city paychecks, dramatically boosting the amount they could receive"--a provision that "became law with no public debate among state legislators and, more importantly, no cost analysis."

And no accountability: "No one from either the state Legislature or city government will take credit for the law, which passed in 1991, and the process of drafting pension legislation in Springfield is so shrouded in secrecy that there's no way of knowing exactly whom to hold responsible."

And no possibility of reversal: "The state constitution says pension benefits cannot be diminished once they are earned."

"Gannon told the Tribune that he was only following the law in filing for a city pension," the paper reports. The scandal isn't that what they're doing is illegal but that it is legal.

Related Video Bill McGurn on retired Chicago union leaders' lavish pensions...This particular provision is unique to Obama's home state, the Tribune reports: "Pension experts from around the country say they've never heard of such a perk for union leaders." But unions have any number of perfectly legal ways to rip off the taxpayers. As we noted in July, the Wisconsin teachers union runs its own insurance company, the WEA Trust. Until Gov. Scott Walker's reforms took effect earlier this year, the union negotiated "collective bargaining" agreements obliging local school districts to pay above-market premiums for its health benefits.

And as The Daily's Jillian Melchior reported last month, state pension funds frequently make risky investments, knowing that if they don't pan out, taxpayers will have to make up the losses. What's more, the boards that manage these funds are stacked with union representatives and political appointees: "Because public unions are an influential constituency, they're inclined toward union priorities."

That is the system President Obama defended on Labor Day. And his support for it is not merely rhetorical. Both the 2009 stimulus and the recently proposed Stimulus Jr. include vast payments to states and localities--in effect, a federal taxpayer bailout for governments that have been so profligate with their own taxpayers' dollars. Some of that money, of course, gets kicked back as campaign contributions and independent expenditures to support the campaigns of Obama and other Democrats. It's all legal, but that doesn't mean it isn't a scam.

By PHILIP K. HOWARD The indictment of seven Long Island Rail Road workers for disability fraud last week cast a spotlight on a troubled government agency. Until recently, over 90% of LIRR workers retired with a disability—even those who worked desk jobs—adding about $36,000 to their annual pensions. The cost to New York taxpayers over the past decade was $300 million.

As one investigator put it, fraud of this kind "became a culture of sorts among the LIRR workers, who took to gathering in doctor's waiting rooms bragging to each [other] about their disabilities while simultaneously talking about their golf game." How could almost every employee think fraud was the right thing to do?

The LIRR disability epidemic is hardly unique—82% of senior California state troopers are "disabled" in their last year before retirement. Pension abuses are so common—for example, "spiking" pensions with excess overtime in the last year of employment—that they're taken for granted.

Governors in Wisconsin and Ohio this year have led well-publicized showdowns with public unions. Union leaders argue they are "decimat[ing] the collective bargaining rights of public employees." What are these so-called "rights"? The dispute has focused on rich benefit packages that are drowning public budgets. Far more important is the lack of productivity.

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CloseImages.com/Corbis ."I've never seen anyone terminated for incompetence," observed a long-time human relations official in New York City. In Cincinnati, police personnel records must be expunged every few years—making periodic misconduct essentially unaccountable. Over the past decade, Los Angeles succeeded in firing five teachers (out of 33,000), at a cost of $3.5 million.

Collective-bargaining rights have made government virtually unmanageable. Promotions, reassignments and layoffs are dictated by rigid rules, without any opportunity for managerial judgment. In 2010, shortly after receiving an award as best first-year teacher in Wisconsin, Megan Sampson had to be let go under "last in, first out" provisions of the union contract.

Even what task someone should do on a given day is subject to detailed rules. Last year, when a virus disabled two computers in a shared federal office in Washington, D.C., the IT technician fixed one but said he was unable to fix the other because it wasn't listed on his form.

Making things work better is an affront to union prerogatives. The refuse-collection union in Toledo sued when the city proposed consolidating garbage collection with the surrounding county. (Toledo ended up making a cash settlement.) In Wisconsin, when budget cuts eliminated funding to mow the grass along the roads, the union sued to stop the county executive from giving the job to inmates.

No decision is too small for union micromanagement. Under the New York City union contract, when new equipment is installed the city must reopen collective bargaining "for the sole purpose of negotiating with the union on the practical impact, if any, such equipment has on the affected employees." Trying to get ideas from public employees can be illegal. A deputy mayor of New York City was "warned not to talk with employees in order to get suggestions" because it might violate the "direct dealing law."

How inefficient is this system? Ten percent? Thirty percent? Pause on the math here. Over 20 million people work for federal, state and local government, or one in seven workers in America. Their salaries and benefits total roughly $1.5 trillion of taxpayer funds each year (about 10% of GDP). They spend another $2 trillion. If government could be run more efficiently by 30%, that would result in annual savings worth $1 trillion.

What's amazing is that anything gets done in government. This is a tribute to countless public employees who render public service, against all odds, by their personal pride and willpower, despite having to wrestle daily choices through a slimy bureaucracy.

One huge hurdle stands in the way of making government manageable: public unions. The head of the American Federation of State, County and Municipal Employees recently bragged that the union had contributed $90 million in the 2010 off-year election alone. Where did the unions get all that money? The power is imbedded in an artificial legal construct—a "collective-bargaining right" that deducts union dues from all public employees, whether or not they want to belong to the union.

Some states, such as Indiana, have succeeded in eliminating this requirement. I would go further: America should ban political contributions by public unions, by constitutional amendment if necessary. Government is supposed to serve the public, not public employees.

America must bulldoze the current system and start over. Only then can we balance budgets and restore competence, dignity and purpose to public service.

What a sham, or scam, or choose a synonym. On Wednesday, the International Association of Machinists approved a new contract with Boeing in which the company agreed to make its 737 Max jet with union labor in Washington state. Yesterday, after getting the machinist all-clear, the National Labor Relations Board (NLRB) dropped its lawsuit against Boeing's investment in South Carolina.

Has there ever been a more blatant case of a supposedly independent agency siding with a union over management in collective bargaining?

Boeing says the new contract wasn't tied directly to a settlement of the NLRB complaint, and that it always made sense to build the 737 Max in Renton, Washington because its work force has experience on the current 737 and offers natural efficiencies.

But it's hard to resist the conclusion that Boeing felt obliged to make the agreement to save its more than $1 billion investment in South Carolina, where it is building 787s. Boeing might have won a legal battle in the end, but first it would have to run through an administrative law judge, then the politicized and Obama-stacked NLRB, and only then would it get to an appellate court. Meanwhile, its investment was in jeopardy and its legal bill was rising.

As for the NLRB, its decision to drop the case so quickly after the machinists cut their deal exposes how politically motivated the Boeing suit was. The NLRB is supposed to be a fair-minded referee in labor disputes, making sure neither side breaks the law. But the board put its fist squarely on the union side to make Boeing pay a price for moving one of its 787 assembly lines to a right-to-work state, to make sure Boeing never did that again, and to demonstrate to any other unionized company that its investment is at risk if it makes the same decision.

By dropping the case, the Obama team at the NLRB can claim it delivered those lessons without ever having to contest them in court. Oh, and Democrats running for Senate in right-to-work states, like Tim Kaine in Virginia, are spared from having to endorse a union position that is unpopular because it costs their states jobs.

The damage here goes well beyond Boeing, which presumably understands the tradeoffs. The NLRB is exposed as one more federal agency that can't be trusted to make honest decisions. The ability of the 21 right-to-work states, which passed such laws under the 1947 Taft-Hartley Act, to attract businesses from pro-union states will also be eroded. The AFL-CIO may cheer that message, but in practice the result is likely to be that more companies simply send jobs overseas where there's no NLRB. Congratulations.